Thursday, July 15, 2010

On the FCC, indecent speech and the pig -- July 15, 2010 column

Dear Big Brother, thanks for your help keeping the pig out of the parlor all this time, but we aren’t living in 1978 anymore. You’re excused.

That was the gist of a federal appeals court ruling Tuesday on the government’s power to police indecent speech on TV.

This, as Joe Biden might say in the East Room, is a big _____ deal.

The court struck down a Federal Communications Commission policy that allows the agency to fine broadcasters for “fleeting expletives,” those stray curse words that spring spontaneously from the mouths of celebrities.

The court said the FCC’s policy was unconstitutionally vague and could chill free speech by causing broadcasters to limit what people say on TV. The ruling likely will be appealed to the Supreme Court.

The federal government has been struggling with what’s unfit for American ears at least since 2 p.m. on Oct. 30, 1973, when an FM radio station in New York played a recording of George Carlin’s 12-minute monologue, “Filthy Words,” about the seven words you couldn’t say on television.

In 1978, the Supreme Court ruled that the FCC could fine the station’s owner for the broadcast. The high court, emphasizing the narrowness of its ruling, used a quaint and telling analogy.

“Nuisance may be merely the right thing in the wrong place – like a pig in the parlor instead of the barnyard. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene,” the Supreme Court wrote.

Part of its rationale was that TV held “a uniquely pervasive presence in the lives of all Americans” and was accessible to children, even those too young to read a newspaper.

As part of its ongoing efforts to keep the pig out of the parlor, the FCC tightened its rules following Janet Jackson’s Super Bowl 2004 “wardrobe malfunction” and several incidents of unscripted profanity. The new rule threatened "the heart of the First Amendment," the appeals court ruled.

"By prohibiting all `patently offensive' references to sex, sexual organs and excretion without giving adequate guidance as to what `patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive," the appeals court wrote in the decision in Fox Television Stations v. FCC.

The court noted how much has changed in three decades.

“Indeed, we face a media landscape that would have been almost unrecognizable in 1978.” The Internet was known only to a few guys at the Pentagon; YouTube, Twitter and Facebook weren’t even a glimmer in anyone’s eye. Since January 2000, every TV 13 inches or larger has contained a V-chip, which enables parents to block TV programs based on a standard rating system. Digital converter boxes also contain the V-chip.

The Supreme Court had sent Fox Television v. FCC back to the 2nd Circuit after ruling that the FCC had not acted capriciously in changing its policy. The Supreme Court did not address the rule’s constitutionality.

FCC Commissioner Michael Copps blasted the appellate court’s decision as “anti-family” and said the court focused on the policy’s chilling effect on broadcasters when it should have focused on “the chilling effect today’s decision will have on the ability of American parents to safeguard the interests of their children.”

The 32-page decision, however, portrays the FCC as wrestling over when a word is OK and when it’s indecent. Different standards prevailed for different circumstances. Words deemed OK in a news interview or a war movie like “Saving Private Ryan” would be unacceptable in a music documentary about “The Blues” or an awards program.

The appeals court cited that uncertainty in its ruling. It left open the possibility that the FCC might be able to craft a rule that is constitutional.

The case raises questions about the role of government in the 21st century. We don’t need a Big Brother censor in the world of the V-chip, numberless Web sites and cable TV stations. And many who want TV language policed also decry the nanny state and insist they want a less intrusive federal government

The pig may be in the parlor to stay, but we still have the power to turn off the TV.